Milne v Ell  NSWSC 555
This case serves as a reminder of how liability for defamatory statements can extend to the republication of the statement by third parties, even where the republication has not been expressly authorised (but impliedly authorised). In summary, an original publisher will be liable for the repetition of his or her original defamatory publication, including in altered form where the republication adheres to the sense and substance of the original publication and:
- he or she expressly or impliedly requested or authorised the repetition of the original publication;
- he or she intended that the repetition should take place;
- the repetition is the natural and probable consequence of the original publication; or
- there is a duty or obligation on the recipient of the original publication to repeat the original publication.
The defendant, Mr Ell, originally brought an action for defamation against the plaintiff, Ms Milne and Mr Ell was awarded $15,000 in damages plus costs in 2014.
Shortly after the 2014 judgement, Mr Ell was contacted by a journalist to whom Mr Ell said (referring to Ms Milne) “She’s not a fit and proper person to be a councillor…” (Statement). This and other statements were subsequently published by the journalist in a printed article appearing in NSW and QLD as well as online.
Ms Milne succeeded in obtaining an award of damages for defamation against Mr Ell arising from the Statement, and its subsequent republication by the journalist.
In summary, it was held:
- Requirement of specificity of pleading imputations: The words “She’s not a fit and proper person to be a councillor…” referring to Ms Milne were sufficient by themselves to give rise to a defamatory imputation (i.e. they constituted an act or condition asserted of or attributed to a person). It was unnecessary for the pleading in the statement of claim to be more specific in the circumstances.
- Defence of honest opinion / fair comment: The imputation was one which related to a matter of public interest (because it related to whether or not a public officer was a fit and proper person to hold the position). On the question of whether or not the Statement was an expression of opinion rather than fact, the Court is required to examine the context, including whether the imputation is a “bare comment”, denuded of the facts upon which it is based or notorious facts presumed to be known by the reader, or without any of the other elements necessary to substantiate the defence. In the circumstances a reasonable recipient would understand the Statement as a statement of fact and not the offering of an opinion based upon stated facts. Accordingly, because the Statement was not an opinion and was not based upon stated facts, the defence of honest opinion / fair comment did not apply.
- Republication: The republication of the Statement made to the journalist was the natural and probable result of uttering the words in the Statement to the person (who was known to Mr Ell to be a journalist) and Mr Ell was therefore liable for its republication. In the circumstances of a press conference, or interview by the press, express authority or a request to publish is not necessary.
- Damages: In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. The purposes of an award of damages have been described as including: the consolation to the personal distress and hurt caused by the publication; reparation for the harm done to the personal and business reputation of the person defamed; and vindication of the reputation of the person defamed. If there had been no republication in this case then the damages would have been nominal (if any). In terms of the republication, the relevant publication issue had sales of approximately 36,000 newspapers and a readership of approximately 135,000. The online publication also caused additional damage and, in some respects, notwithstanding its withdrawal from the website, it may still be causing damage. The judge also accepted the “grapevine” effect of the publication of the article in print and the broadcasting of the website so that the damage was not confined to those that read the article or opened and/or downloaded the website article. Taking into account the fact that a public apology had been published by the publishers of the article (thereby vindicating Ms Milne to an extent), damages of $45,000 were awarded to Ms Milne plus costs.